CNN BURDEN OF PROOF

Missing Documents Could Delay McVeigh Execution

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. (BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: A horrible noise, the roar of the whole building crumbling.

UNIDENTIFIED MALE: About 1/3 of the building has been blown away, and you can see...

JOHN ASHCROFT, ATTORNEY GENERAL: On June the 2nd, 1997, a jury convicted Mr. Timothy McVeigh of the April 19, 1995 bombing.

WILLIAM J. CLINTON, FORMER PRESIDENT OF THE UNITED STATES: It was an act of cowardice...

UNIDENTIFIED FEMALE: We are seeing injured people everywhere.

CLINTON: And it was evil.

UNIDENTIFIED MALE: They are in what they call a code black right now -- a disaster mode.

ASHCROFT: This brutal act of terrorism killed 168 innocent people.

JANET RENO, FORMER ATTORNEY GENERAL: The death penalty is available, and we will seek it.

UNIDENTIFIED MALE: Bomb experts say the destruction appears to indicate a car bomb loaded with more than 1,000 pounds of explosives.

UNIDENTIFIED FEMALE: Unfortunately, there are still people trapped...

UNIDENTIFIED MALE: We are getting reports of numerous fatalities.

ASHCROFT: This cowardly crime against our nation was the largest terrorist attack ever within the United States of America.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, HOST: Hello and welcome to BURDEN OF PROOF, and a special welcome to our international viewers. The nation expected the execution of Timothy McVeigh next Wednesday for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people and injured more than 500. Stunning revelations from the FBI could delay that execution. We expect, within the hour, the attorney general of the United States to announce a stay until 3,100 recently discovered FBI documents can be thoroughly examined by McVeigh's defense team. The Justice Department and the FBI are claiming these materials would have had no bearing on the outcome of the federal trial. McVeigh's attorneys say that they are weighing legal options.

Joining us today in Houston: former member of the McVeigh defense team Christopher Tritico. In Chicago we're joined by Scott Mendeloff (ph), a member of the McVeigh prosecution team. Joining us from New York is Bill Daly, former FBI investigator. In Buffalo, New York, Dan Herbeck author of "American Terrorist: Timothy McVeigh and the Oklahoma City bombing." Here in Washington: Scott Ramsburg (ph); attorney for Terry Nichols, Michael Tigar, and Casey Cammatte (ph).

In our back row: Michael Musgrove (ph) and Travis Abercrombie (ph).

And also joining us today from the Justice Department is CNN justice correspondent Kelli Arena.

Kelli, first to you: When do we expect the attorney general to make an announcement, and do we know for sure what it's going to be?

KELLI ARENA, CNN JUSTICE CORRESPONDENT: Well, he is expected to make an announcement in one-half hour from now -- 1:00, we are told. The -- he is meeting with his staff right now. We are told that there is a strong leaning toward announcing a delay.

We are told that if that delay is a announced at 1:00 that it would likely be a 30-day delay -- that that delay would provide enough time for all of the interested parties to review those 3,000 pages worth of documents that recently were revealed, Greta.

We're also expecting a statement from the FBI, the Dallas office there. An agent who works there happened to be the last head of the Oklahoma City task force. And we are expecting, perhaps, that he'll shed some light on exactly how these documents never got to McVeigh's defense attorneys from the very beginning of this process. As you know, they should have been revealed in the discovery phase of this trial, Greta.

VAN SUSTEREN: Kelli Arena, stand by at the Justice Department as we await the announcement from the attorney general of the United States.

Mike, let me go to you. Timothy McVeigh isn't the only defendant affected by this new document dump. Your client, Terry Nichols, what does this mean for him?

MICHAEL TIGAR, ATTORNEY FOR TERRY NICHOLS: It means that Terry Nichols, whose direct appeals are still pending, can have the opportunity to renew his claims, which we've made all along. We had a written agreement with the government; they were supposed to turn over all these 302s. We've caught them in lie after lie after lie, and now this latest revelation.

We have until midnight tonight to file in the United States Supreme Court a petition for rehearing from the denial of certiorari. We will meet that deadline and preserve Terry Nichols' rights. And then we'll attempt to get in front of Judge Matsch and have a full hearing to air the circumstances under which the latest FBI fiasco has taken place.

VAN SUSTEREN: Mike, are you mad -- I mean, or are you sort of sympathetic to what happened to the government?

TIGAR: Well, I am angry because this is what the FBI does: They lie to the prosecutors. We've caught them doing it again and again and again. They decide what their own prosecutors need and, in this case, I guess I've gotten past being angry. I'm kind of resigned to it, and trying to do everything we can because Terry Nichols was acquitted on most of the charges against him. He's got a real defense here on the merits, and this could be the thing that makes a difference.

VAN SUSTEREN: Chris, let me go to you. You were on the team that represented Timothy McVeigh. What's your reaction to the 3,000 -- or, at least, there are rumored to be 3,100 pages. Does it mean anything to you?

CHRISTOPHER TRITICO, CRIMINAL DEFENSE ATTORNEY: It means a lot. And I certainly echo the statements that Mike just made. Time and time again you find out that the government has not turned over the things that they were supposed to give.

What does it mean? We don't know yet. Rob Nigh's got his hands on those documents; he's looking a them right now. It could be something so significant that we would have to go back in to Judge Matsch and ask to reopen Tim's writ of habeas corpus and have another hearing on this.

VAN SUSTEREN: Have you seen any of these documents, or have you heard from any of your former colleagues? Have they gone through them, do we know what's in there?

TRITICO: No. I called -- as soon as I found out about it yesterday I called Rob. He was already on a plane to Indian to meet with Tim, and so I haven't had a chance to have a sit-down with Rob and find out exactly what he's finding. I have heard that some of these documents may be significant; but until we have a chance to really pour over them, I don't know where we're going to go. But I do see this turning into, possibly, a reopening of Tim's writ if that's something that we think we could procedurally do.

VAN SUSTEREN: Bill Daly in New York, former FBI, how does this happen?

BILL DALY, DIRECTOR, CENTRAL RISKS GROUP: Well, first of all, Greta, it's terribly disappointing, embarrassing. The men and women of the FBI, who are dedicated to holding the laws of this country, you know, go out of their way to do what that they can to help the citizens, and something like this goes -- you know, is really very -- a disappointment for them and for everyone involved.

Something like this, from what I understand from my contacts, is that it could have been a glitch in the way that some of the data was entered into the indices, or maybe it's some of the way the 302s were referenced, as serialized, as they call it.

But I'd like to point out the fact this is something that happened, maybe, in about three or four different offices. It's documents that have a few hundred here, a few hundred there. When the FBI archives call for these documents to be collected, that's when they discovered -- they discovered that they were not turned over.

So it's the FBI, it's the Justice Department bringing this to the attention, as opposed to some of the allegations made a few minutes ago that they've tried to squelch and suppress and hide some of these documents.

VAN SUSTEREN: All right, well let me tell you something Billy, you're disadvantaged -- you're in the studio. When you said that it was a glitch, Mike Tigar sitting across from me rolled his eyes.

Mike, why are you rolling his (sic) eyes?

TIGAR: Because this has happened again and again and again. Yes, I salute the archivist who found them. He's probably afraid of going to jail with the other FBI agents that have been caught doing stuff like this...

VAN SUSTEREN: You think it was deliberate?

TIGAR: Exactly. In fact, in the Nichols trial -- I'm glad you've got Scott Mendeloff (ph) on today because Judge Matsch struck the testimony of a government witness in the Nichols trial because the government was playing fast and loose with FBI 302s. So this is, once again I'm afraid the government is a recidivist in this situation, and I regret that they've decided not to repent.

VAN SUSTEREN: Speaking of -- let me go ask you something, Mike. You know Judge Matsch, you tried this case before him. What's his reaction? What's you expectation? How is he going to react to this?

TIGAR: Well, I have seen Judge Matsch get angry at me and angry at the government. I have never seen him so angry and in righteous indignation as when he discovers that a lawyer is not disclosing things that ought to be disclosed. I expect him to treat this in the manner that he's treated similar things. I think he's going to have a hearing about it.

VAN SUSTEREN: Mike, you're a great advocate; and I got to tell you that every time the FBI has withheld documents in my case, I've jumped up and down, screamed and ranted and raved. But I got to tell you: One thing that strikes me about this particular case is at least I tip my hat to the Justice Department. On the eve of the execution -- they could have buried this. Your client wouldn't know about it, neither would Timothy McVeigh and his defense team. Do you give any credit to the Justice Department, basically on the eve when they're not likely to have gotten caught, anyway, for doing this?

TIGAR: You know, our children will be ashamed that common integrity could look like courage, as Yevgeny Yevtushenko said.

Yes, I salute the one FBI agent who decided that this pattern of hiding had to come to an end. I think that whistle-blower should be found and given an award and so that maybe there would be a few hundred more of them in the bureau, and that this wouldn't ever happen again.

VAN SUSTEREN: Bill, do you want to respond?

DALY: Yes, I think that indictment of all the men and women of the FBI is certainly uncalled for, and...

VAN SUSTEREN: But Bill, what do we do about the problem? I mean, there are instances -- I mean, when the FBI -- when there have been some agents that have withheld stuff -- not all of them by any means.

DALY: Well, you know, when you're dealing with an organization where you have individuals, human beings, people making some decisions which they should not be making -- they should be guided by the U.S. attorney -- assistant U.S. attorney who's involved in the case and not withhold anything. They're under oath to uphold the laws of the United States.

So if someone does that, and they do that intentionally they, themselves, should fall underneath what the legal system, says, which -- they should be brought to trial.

VAN SUSTEREN: And I suspect Judge Matsch is going to have a few words with somebody as this matter proceeds.

We're going to take a quick break. Newly discovered FBI documents have put a wrinkle in the federal government's first execution since 1963. We'll have more on the McVeigh case after this short break.

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

The attorney general of the United States is expected to make an announcement in the next 30 minutes about whether the United States will postpone the execution of Timothy McVeigh. We'll bring that to you when it happens.

In the meantime, we go back to our guests. Let me go to Buffalo, to Dan Herbeck, who has recently written a book on Timothy McVeigh and interviewed him.

Dan, did Timothy McVeigh confess to you -- let me strike, let me not use that word "confess" -- what did he say to you about his involvement in the bombing?

DAN HERBECK, AUTHOR, "AMERICAN TERRORIST": Well, he's made it very clear to us from day one that he admits his guilt in the bombing, and if there's any interest in the truth of all the matters here, there's no doubt that the FBI got the right person when they arrested Tim McVeigh.

Whether they conducted themselves properly regarding these documents is another question.

VAN SUSTEREN: Mike, this raises, I think, the most intriguing legal question. Everyone in the country has heard he has admitted his responsibility in the book. Now we hear about these documents. Many people will think, What's the difference? Why is this important?

TIGAR: It is not relevant on the issue of guilt or innocence. I think a judge would hold that. But the Brady case requires the government to disclose things relevant to punishment. Let's suppose, as has been reported, that in these documents there's information about others who were involved in this bombing who haven't been caught or tried, let alone gotten the death penalty. The strongest statutory mitigator against the death penalty in the federal death penalty law is that others who were involved in the same offense are not getting the death penalty. So that's just one example of the way in which these documents could be relevant on the issue whether McVeigh was properly given this maximum punishment.

VAN SUSTEREN: So in looking at this matter as a viewer, the whole issue of the statement to Dan in his book is almost a red herring: It's the legal issue about the mitigation effect, that perhaps the death penalty could, ultimately, be lifted from him. Is that right?

TIGAR: That's right. And this is once again -- here we are again, you and I, talking about this. This death penalty system of ours is so flawed, and that's where the flaw is in this case, as well.

VAN SUSTEREN: Chris, what do you think your client -- I know that you haven't had any contact with your client, as he's up in Terre Haute on death row -- is going to make of all this?

TRITICO: I think that once he has a chance to look at this, he's probably going to be a little miffed himself, just like the rest us are, about this situation. Let me...

VAN SUSTEREN: What did you mean by "miffed"? If he's already admitted that he did this in a book, in some ways, he's lucky that the FBI and the Justice Department have come forward with this.

TRITICO: The issue, Greta, is not about the book. Let's assume we take it all the way to the conclusion, and Tim McVeigh somehow gets a new trial: The book will be problematic. The issue is, as is constitutional, right now protecting every citizen's right to a fair trial. That's what we're looking at here, another example of somebody possibly being denied a fair trial through government misconduct. So put the book aside and worry about that, if he gets a new trial. The issue is the Constitution and how it affects every citizen.

VAN SUSTEREN: Earlier today, I spoke with Timothy McVeigh's father, Bill, on the telephone and I asked him what he thought that his son's reaction to this news would be, about whether or not Timothy still wanted to die on Wednesday. This is what his father said to me: "I don't know what he wants...he had made up his mind to die. But now, I don't know."

I asked how Bill McVeigh was doing, the father. He said, I'll handle it one day at a time -- that's all I can do.

Chris, let me go back to you. Do you think your client wants to die on Wednesday?

TRITICO: I think that Tim's decision to waive the last part of his appeals on writ of habeas corpus was a rational decision with the evidence he had at the time. In other words, he didn't think he was going to prevail on that writ, based on the prior appeals he'd already had: Stop it, let's get this over with -- I'm tired ever this.

Now we've got new information that I think that he's going to look at, as are Rob, myself, and the other guys, and make a decision as to whether or not we should make a new attempt to get some more evidence in at this point. We've got to look back now.

VAN SUSTEREN: Dan, do you think, from your conversations for your book, that Timothy McVeigh truly wants to die, on May 16?

HERBECK: Well, I can tell you he's ready to die. But I can...

VAN SUSTEREN: But does he want to? There have been so many reports that this is some sort of -- ready to is a little different than wanting to.

HERBECK: He has told us that this whole thing is a grand suicide plot, suicide by cop. So I think he wants to die, but I have to very quickly add to you that he will take absolute delight in the fact that this is going to embarrass the FBI, and I think he will want to use this situation to spotlight the weakens of the FBI as much as possible. Let's keep that in mind.

VAN SUSTEREN: Bill, let me go back to you. Dan just said it's going to embarrass the FBI. For some reason -- maybe it's me -- I actually -- and even Mike and I disagree on this -- think that we should commend the FBI and the Justice Department for having made a mistake -- I don't know if it was deliberate or if it was a mistake -- and coming clean on this. What do you think is the impact inside the FBI about this?

DALY: I think this is very demoralizing. They've come off of the issue with Hanssen, where they had a problem with one of their own employees. We're talking about 99.9 percent of the people working there wanting to do good; they're citizens of the United States working for other citizens. When something like this happens, I know the FBI's position is of liberty and law: We made a mistake, but let's make sure that due process continues, and if it requires having these documents looked at, let them be looked at, and let's not take a chance with taking someone's life.

On the other hand, I'd just like to say that, on a pragmatic level, it's been suggested here that these boxes may contain some type of treasure trove of leads and information that will, in some way, vindicate McVeigh. I would say that if there were anything that were substantive -- anything that were critical and germane to that investigation -- it would have naturally risen up to the top and wouldn't have been hidden in a box.

VAN SUSTEREN: I'll disagree with you, as I have with Mike. I'll tell, you, Bill, I have never ever seen a prosecutor and an FBI agent able to recognize information that is favorable to defense. We defense attorneys see things much differently.

We're going to take a quick break and come right back and talk about this.

(BEGIN Q&A)

Q: Why was the nomination of Theodore Olson as United States solicitor general held up by the Senate Judiciary Committee?

A: To examine if Olson had any role in digging up scandals about former President Clinton for the conservative magazine "The American Spectator."

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF. At the top of the show, I introduced Scott Mendeloff (ph) who was on the prosecution team. We had expected that he'd be joining us for the show, there's been a little scheduling issue. We hope to have him on soon.

Mike, let me go to you. If it is postponed 30 days, the execution, it isn't going to happen June 16, is it?

TIGAR: I can't imagine that the review process could be finished in 30 days. After all, there are already out there 100,000 witness statements from the Nichols camp, and the McVeigh camp, and the FBI. There are 100,000 pieces of physical evidence.

So, you have to take these 30 -- 100 pages, what they say it is, you have to scan it in, and then use a computer program to try to see the significance of it in terms of the information that's already out there, and then look at the records of the McVeigh and Nichols trial.

Our experience litigating the FBI withholding on an earlier occasion is, that just doing the looking in order to be able to write an intelligent analysis ought to take about 90 days, and I would expect Judge Matsch would respect that, if indeed it gets before him.

TRITICO: In that 90 days...

VAN SUSTEREN: Go ahead.

TRITICO: That 90 days excludes whether or not you have to do any additional investigation to ground.

VAN SUSTEREN: What about appeals, Chris? I mean, let's suppose -- let's say that there is something in this document you find powerful for McVeigh on the term, even on the issue of punishment, without looking at the guilt phase, what about -- I assume there will be hearings, are there rights to appeal from that?

TRITICO: Well, I think that the state Tim finds himself in, his best and maybe only avenue is to ask for -- to reopen his writ of habeas corpus and attack it that way. He's beyond -- the Supreme Court has already lost jurisdiction on his direct appeal, so he would have to reopen his writ and go through it that way.

VAN SUSTEREN: And that makes a difference, doesn't it, Mike?

TIGAR: Absolutely. The problem with this late disclosure is that the standard of review changes. The longer the government waits to disclose the new evidence, the worse off the defendant is in trying to challenge or overturn either the conviction or the sentence. That's the result of this anti-terrorism, in effect, the death penalty act.

Tim looks like he may be reduced to filing a so-called successor petition. I hope that the courts will understand that when it is the government's fault like this, that it should be a different, more liberal standard of review than you would otherwise get.

VAN SUSTEREN: But you say "hope," I mean what's the law say?

TIGAR: Well, the Supreme Court of the United States has not spoken a final word on this. Under the '96 act, it looks like he's got to show some great chance that this would make a difference.

However, and Chris will research this, in Felker v. Turpin, the Supreme Court said that the review of a denial on a successor petition is by original writ of habeas corpus. The court has never figured out what the standard review in that case would be, in the case of this kind. So, watch the space, because that's going to be an open issue for Mr. McVeigh.

VAN SUSTEREN: Dan, will there be another chapter added to your book?

HERBECK: We are going to be covering the execution. We have felt right along we would write an epilogue to our book.

As the non-lawyer in this group, I would just like to say that the people I feel sorry for right now are the people in Oklahoma City, because they've been on a rollercoaster for six years now, and who knows how much longer -- and also for Bill McVeigh and his family. He's had a very hard time coming to grips with the fact that his son is about to be put to death, and I don't know how he's going to deal with this delay. We've talked to Bill a lot in the last few weeks, and I think it is going to be a very hard time for him and the people in Oklahoma City.

VAN SUSTEREN: And unfortunately, we have to end there. And I've got to add just one thing, though, Dan, is that defense lawyers, as well -- even though we talk law, we indeed recognize the tragedy that occurred here.

But that's all the time we have for today. Thanks to our guests, and thank you for watching. Stay tuned to CNN throughout the day for developments in the Timothy McVeigh case. We'll have more this evening at 8:30 p.m. on "THE POINT," and join us Monday for another edition of BURDEN OF PROOF.

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